I think it is very dangerous to draw such sweeping conclusions based on a T.V. miniseries, based on a book, written by someone with their own political biases.

Take "all men are created equal", the very point is that while many of the founders personally found slavery as an institution to be abhorent and wished to abolish it, NONE of them understood anything in the Constituion as doing that, OR as permitting the courts to do it. What they DID believe was that the government they helped to create would inexorably (through the political processes they specified in the Constitution) lead to the destruction of the institution. I dare you to find a single quote of the founders that any of them though that the Constituion would have empowerd courts to abolish slavery (in the end it was abolished by Constitutional Amendment).

None of the founders envisioned judges imposing their "wisdom" on the people in contradiction to the clear understanding of the Supreme Law of the Land which was given its legal effect by the People, and not the drafters or the courts. What they believed was that society, under the system of government they promulgated, would come in its wisdom to abolish it.

Well, I think it is pretty clear...based on the text of the document (This Constitution...shall be the supreme law of the land), and the fact that they chose to have a WRITTEN Constitution (unlike England) that they intended it to be like a LAW, namely that it has a fixed meaning which does not change merely by virtue of passage of time. There is only one manner proscribed for altering the meaning of that supreme law of the land, by the Amendment process laid out in Article V.

What IS true is that among many of the drafters there was some--often significant--disagreement over what the plain meaning of some parts of the Constitution were; but, none of them believed that whatever that meaning was, that it was fluid. Furthermore, such ambiguity merely moves the foul lines a bit further apart, it does not erase them for judges. Just because there is SOME ambiguity in what was meant by "cruel and unusual punishment" doesn't mean there were NO boundaries clearly understood. Take the death penalty for example. There is no legitimate doubt that the death penalty is anticipated and provided for in the Constituion. There has been no amendment changing that. It is therefor an act of willful disregard of the Supreme Law of the land for the courts to take that decision out of the hands of the people.

This is a dangerous understanding of the role of judges, and one that more than likely projects your view of CURRENT public perception onto precedents as though that is what public perception was at the time. Furthermore, it suggests that public opinion should have something to do with how a judge rules, which is contrary to the very reason they are not elected to their offices.

How was it "clearly and directly disingenuous"? The point he is making every time that I have heard or read him making these comments is that the urge for judicial activism isn't exclusive to the left [however more prominent it may be], that just as he understands as an originalist that the Constiution is utterly silent on abortion rights (thus leaving it to the states and the people to decide), so to is his response to those on the right who would have federal courts create an equally non-existent right to life for the unborn. Unless you are saying that you believe Scalia WOULD ever rule that there is such a right to life in the Constitution, how is it disingenuous?

But your innaccurate understanding of what Scalia says aside, why don't we turn it around. When Roe v. Wade was actually decided, the overwhelming majority of the public was in favor of the very types of legal restrictions on abortion that the court subsequently (and with blindness to history) said were proscribed by the Constitution. The "center" didn't hail Roe v. Wade, only the left did. So by your view, wouldn't Roe have been a bad decision at the time?

Furthermore, whereas Roe imposed a policy on the entire country, overturning Roe would do no such thing. Overturning Roe would not make a single abortion illegal, it would merely return the decision as to whether it SHOULD be legal or not to the people of the states, as it was for nearly 200 years.

The problem is that you are readin politics INTO the decisions, but rather dually . As Scalia once remarked with regard to his voting to find that Flag Burning is constitutionally protected speech ('if it were up to me, I'd through the long-haired, unwashed, sandle-wearing hippies in jail, but it isn't up to me').

You reveal yourself my friend. The only two judges you could possibly be referring to are Thomas and Souter, and I am all but metaphysically certain that you do not mean Thomas. To describe Souter as "boting both ways" is ridiculous. Souter has voted "left" more often during than any justices other than Ginsburg or Stevens.

First of all, 90% of the courts rulings are utterly uncontroversial and not even close. It is the small percentage where the court IS relatively split that get all the attention, and it is usually through a bretty foggy media filter.

Take Bush v. Gore, people keep referring to it as a 5-4 decision, only the centrail holding, that the actions of the Florida Supreme Court violated the Equal Protection clause of the constitution was far from that, it was actually a 7-2 holding. The 5-4 split was on the remedy available. Care to guess who was one of the 2? It was your man Souter.

Furthermore, the fact that you single out Scalia as your whipping boy, while ignoring equally...if not even more consistently "political" rulings of some of the "left" wing Judges shows that you yourself tend to be the one politicizing it.


I have long argued that it is no less legitimate to "interpret" the equal protection clause as to invalidated the progressive income tax (it clearly has the support of the people based on all polling on flat taxes, and has no less historical basis than gay marriage does..which has been justified under that clause); and, while I would wholeheartedly support such a POLICY, I would be incredibly critical of any judge who would make such a baseless ruling.

While it is true that originalism does yield results that are more to the liking of the right than the left rather consistently, that is because most of the decisions the left likes:

1. Are not supported by anything in the text of the Constitution, or the history and traditions of our society (and are often contrary to any or all of those things)
2. More often than not overturn the popularly expressed will of the people through their democratically elected representatives, and in a manner which forever (so long as the decision stands) removes what had historically been a political decision of the people through their representatives.

Now, I would be happy to discuss the general rules of interpretation that Scalia, like a good originalist employs, and perhaps you could tell me which of them IN PRINCIPLE you disagree with. Because the LAST thing we should want is a legal landscape where judges decide what they think is the "fair" outcome, and then contort the standards and principles to arrive at that outcome in a particular case, only to have to subsequently abandon or further contort those same standards and principles in the next case when the rule they made up to achieve the desired outcome in the last case would result in an outcome they do not like in the following.

Classic example of this is in the abortion/sodomy cases. Some yeras ago, the court issued a ruling where the majority even acknowledged that Roe was probably wrongly decided, but that the principle of Stare Decisis, coupled with wanting to avoid the appearance of succumbing to puplic pressure counsled against overturning it. That same court issued a ruling that their own precedent which had upheld anti-sodomy statutes, and citing public opinion/pressure as a reason for doing so. Scalia rightly dissented in the both cases, and in the later remarked that a judge should apply stare decisis to stare decisis, meaning if factor x is dispositive in one case to justify invoking stare decisis, it should be consistently applied in future cases.

The same applies to the new favorite tool of those who would ignore the will of the people as expressed in the Constitution...the use of foreign legal opinions in the interpretation of U.S. statutes and Constituion. While readily citing foreign court opinions, members of the current court justify ever increasing restrictions (and clearly heading towards judicial abolition of) the death penalty. Meanwhile, the courts of those very same countries have far less stringent abortion rights rulings, but those same justices suddenly do not see foreign court rulings as dispositive in the abortion cases.

Scalia rightly rejects out of hand the use of such foreign legal opinion in the interpretation of the U.S. Constituion (with the exception of Old English Common law to the extent it shed light on the original understanding of terms in the Constitution lifted from it), dismissing it is merely another disingenuous tool of those who wish to rewrite the laws of our land, rather than apply them. He said it nicely: "I will become a believer in the ingenuousness - though never in the propriety - of the Court's newfound respect for the wisdom of foreign minds when it applies that wisdom in the abortion cases."

Lastly...for now...I think you will find that every bit of your criticism of Scalia is based not on reasoned critique his express philosophy (which he more than any other justice has articulated and adheres to consistently), but rather on your own political view of the outcomes he reaches, with little or no regard to the legitimacy of the reasoning behind it.

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane